AP And Shepard Fairey Settle Lawsuit Over Obama Image; Fairey Agrees To Give Up Fair Use Rights To AP Photos

from the can-you-do-that? dept

It appears that much of the lawsuit involving copyrights and the iconic Obama poster by Shepard Fairey has come to an end, as Fairey and the Associated Press have settled their lawsuit*. As you hopefully know, Fairey created the poster, using an image that he admitted he found via Google News.

For quite some time, no one (including either the Associated Press or the actual photographer, Mannie Garcia) recognized what the original photo was -- clearly suggesting that the poster was transformative. Finally, two years ago (after the election), a photo journalist named Tom Gralish tracked down the original photo. At the time, Garcia seemed thrilled that his photograph had been used. But the whole thing quickly went into bizarre-town, as the AP flipped out and threatened to sue Fairey, despite the fact that it had never realized he used their photo. Considering the level of transformation, and the lack of artistic choices by the photographer, there was a strong argument that there was little in the photograph that was actually protectable, and what was protectable, was likely fair use in the manner it was used.

Fairey, confident of his position, sued the AP first, leading to a countersuit (and later, a bizarre side argument when Garcia claimed that he owned the photo, not the AP). Of course, the case got a lot more complex (and ridiculous) when Fairey stupidly destroyed evidence and lied about which photo he had used. For someone who had such a strong legit argument, this seriously undermined his case.

Of course, what's never been explained is how the AP was actually "harmed" here. If Fairey hadn't used that photo, he would have found another photo. No one associated the poster image with the AP, and the revelation that it was an AP photo only increased the attention for that AP photo. The whole thing was silly, and perhaps the AP realized that in coming to this settlement. Fairey, of course, had every reason to settle because of his own stupid actions that undermined what otherwise was a solid case. The details of the settlement are a little strange however:

As part of the deal, Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative. The two sides also reached a financial settlement; terms weren't disclosed.

The release said neither side surrenders its view of the legal issues surrounding the dispute. The deal also calls for both sides to work together with the "HOPE" image and share rights to make posters and merchandise based on it.

I can understand this, but I wonder if, in that first part, Fairey has effectively given up his fair use rights -- and whether or not that's legal. If Fairey has a perfectly legitimate fair use of an AP image, and doesn't license it, is that still a violation of this agreement?

And while it's unfortunate that we won't get a court to rule directly on the fair use issue, it appears the case is not totally over. In another article detailing the case, it notes that the case will continue against a clothing manufacturer One 3 Two*, who made shirts with the image, and is still fighting and saying that its use did not infringe. However, it also basically says that it licensed the image from Fairey, and if it did anything wrong, basically the blame should land on Fairey.

Lawyers for clothing manufacturer One 3 Two said in court papers that the "total concept and feel" of the AP picture and the Obama image were different. They said that while the AP picture "depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey's street art."

The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey's images as it sold apparel and other merchandise using the art.

It would be nice if we actually got a clear ruling that the image did not infringe, but that seems unlikely.

* It's worth pointing out that both articles I've linked to here were written by Larry Neumeister of the Associated Press. While I am sure that Neumeister did his best to be totally objective, in the past, the AP's reporting on this case (which, obviously, is partly about the AP) has not always been objective or fair.

Jeebus

Huh?

As part of the deal, Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative.

I too don't get it. I guess I can understand the one photo, becuase as Mike pointed out, the guy did some things that undermined his case there. But what sense does it make to even consider that kind of arrangement with the AP for any future photos?

- Does he think that he can simply go around them in the future, and use different sources?
- Does he think that you can't really waive Fair Use, so if the opportunity presents, he'll do as he likes, and not be a moron about his defense the next time around?
- Does he live by a view of Copyright that is so misguided that this kind of arrangement is not only a sensible thing to do, but the way it should always be done?

Re: Jeebus

Actually, I have to disagree with how transformative it is. There are actions you can run in Photoshop that will produce this kind of image. The photo was very faithfully reproduced in the poster down to the shading, pose, etc. Now I guess you could argue that the Photoshop action is transformative and maybe configuring the settings on the action makes it even more transformative, but it wouldn't surprise me if he ran a basic action to create this image.

Proof of transformativeness?

For quite some time, no one (including either the Associated Press or the actual photographer, Mannie Garcia) recognized what the original photo was -- clearly suggesting that the poster was transformative.

I disagree with this analysis. I think it is quite clear that the reason that AP took so long to notice that the Hope image utilized one of their photos is that the photo was more or less indistinguishable from 1000s of other photos of Obama. It had little to nothing to do with how transformative Fairey's use was. In fact, when you compare the Hope poster to the AP photo side by side, it is extremely obvious that Fairey used the AP photo. Nobody really contests that. Indeed, the claims for transformativeness were not really grounded in the idea that Fairey's use obscured the original photo in a way that made it hard to determine the source of the image. Instead, they were based on the political nature of the use, and the different type of audience to which it was directed.

I think perhaps you are conflating the arguments related to whether Fairey used copyrightable expression from the AP photo with those related to fair use. That the photo was so similar to 10000s of other photos speaks to the issue of copyrightability, not necessarily to the fair use issues.

Re: Re: Jeebus

"Now I guess you could argue that the Photoshop action is transformative and maybe configuring the settings on the action makes it even more transformative, but it wouldn't surprise me if he ran a basic action to create this image."

Yeah, OK. But the image is still very different. Different enough that they "offended" party had a hard time figuring it out.

What filter you used doesn't really enter into it. Unless you wrote the filter, I suppose, but that's a whole other kettle of fish.

Get your facts rights

Dear Mr. Masnick,

You state "Fairey, despite the fact that it had never realized he used their photo. Considering the level of transformation, and the lack of artistic choices by the photographer, there was a strong argument that there was little in the photograph that was actually protectable, and what was protectable, was likely fair use in the manner it was used. "

“. . . But the image that I continued to put out there myself, they couldn't have any affiliation with it because it was being perpetuated illegally in a lot of ways, and so I just continued to do that on my own without any coordination with them, and that was the "Hope" image.

Secondly, Overlaying his “Hope” poster, slightly rotated, over Mr. Garcia’s photo produces a perfect match—the eyes, the shoulders, even the lighting on Obama’s face all line up.

As for you claim of "lack of artistic choices" try depth of field (aka field of focus), the angle at which he took the photo, the choice of lens - a long lens compressing the back to be out of focus slightly, exposure all of which are Artistic Choices.

And food for thought.. any idea how many photos Mr. Garcia makes in a year or how many the AP and it's world-wide base of photojournalist make in a year??

Easy to overlook a photo of a junior Senator from Illinois, who was not even the focus of the assignment Mr. Garcia was on when he made the photo and also to not realize from where it came.

To make your own HOPE poster people can just use Gimp(or Photoshop) to posterize the colors, and using some blur masks, you can get pretty close without any retouching, of course for better effects redrawing some parts is always good.

Re: Re: Jeebus

"Of course, what's never been explained is how the AP was actually "harmed" here."

AP owns the image.
When you use an image without the photographers permission (and in this case, without compensating AP... who charges for the use of their image) you are harming the photographer and the agency that they work for.

I know that people think that any image they run across is free. Even if it has a copyright symbol on it.
Its not.
You need to respect other people's property.
Its not surprising that Garcia didn't realize it was his image. He shoots hundreds of them a day.
The fact that you stole someone's property, and they didn't initially realize it, doesn't mean that you get to keep it.

As far as it being 'transformative'??
Fairey wouldn't have an image if it wasn't for the use of the AP photo.

Not going to get a clear answer

The photo was created by someone whose rights belong to the AP, but they did not create the distinctive color separation or all of the shading and other visual elements of the painting.

The painting was created by Fairey, but he did not create the basic pose and facial expression of the person in the painting.

So the image doesn't belong 100% to either of them. A fair division of the property would lie somewhere in between 100% for AP and 100% for Fairey. But where? 10% for AP and 90 for Fairey? The reverse? 60-40? 50-50?

That's not something that can be calculated without coming up with a numerical assignment of the value of every facet of the image, and that's a fractal problem. Whatever system you can devise, I can find deeper variables to tweak. And we can argue for millennia as to the scaling for each variable.

The parties negotiated a sharing agreement, and that's all we'll ever get. It's the best solution, since it eliminates disagreement and the expense of being disagreeable. And maybe that's the absolute answer.